Discovery - ESI

Question 1

Under Rule 26(b)(2)(B), the ESI must not only be ________, it must also be _______ _________.

Answer 1

relevant

reasonably accessible

Question 2

The party from whom the request is sought bears the burden of showing the information is not reasonably accessible because of________ ________ or ______.

Answer 2

undue burden

cost

Question 3

The party from whom the request is sought bears the burden of showing the information is not reasonably accessible because of undue burden or cost.

Even if that showing is made, the court may nonetheless order discovery, subject to the limitations of Rule 26(b)(2)(C), if the requesting party shows _______ _________.

Answer 3

good cause

Question 4

The term “___________ ___________” comes from cases that predate the 2006 amendments, and courts regularly struggle with how to apply the term.

Answer 4

reasonably accessible

Question 5

Of course, with changing technology, what is “__________ ___________-” changes.

Answer 5

reasonably accessible

Question 6

A ________ __________ analysis need not be considered in every case involving e-discovery (which, as the court notes, “includes virtually all cases” in today’s world).

Answer 6

cost-shifting

Question 7

A court should consider________ __________ “only when electronic discovery imposes an ‘_______ ________ or __________” on the responding party.

Answer 7

cost-shifting

undue burden or expense

Question 8

The question “turns primarily on whether it is kept in an ___________ or __________ format,” which “turns largely on the_________ on which it is stored.”

Answer 8

accesible

inaccessible

media

Question 9

The court adopts a seven-factor test for determining if costs should be shifted.
1. ?
2.
3.
4.
5.
6.
7.

Answer 9

1. The extent to which the request is specifically tailored to discover relevant information.

Question 10

The court adopts a seven-factor test for determining if costs should be shifted.
1.
2. ?
3.
4.
5.
6.
7.

Answer 10

2. The availability of such information from other sources

Question 11

The court adopts a seven-factor test for determining if costs should be shifted.
1.
2.
3. ?
4.
5.
6.
7.

Answer 11

3. The total cost of production, compared to the amount in controversy

Question 12

The court adopts a seven-factor test for determining if costs should be shifted.
1.
2.
3.
4. ?
5.
6.
7.

Answer 12

4. The total cost of production, compared to the resources available to each party

Question 13

The court adopts a seven-factor test for determining if costs should be shifted.
1.
2.
3.
4.
5. ?
6.
7.

Answer 13

5. The relative ability of each party to control costs and its incentive to do so

Question 14

The court adopts a seven-factor test for determining if costs should be shifted.
1.
2.
3.
4.
5.
6. ?
7.

Answer 14

6. The importance of the issues at stake in the litigation; and

Question 15

The court adopts a seven-factor test for determining if costs should be shifted.
1.
2.
3.
4.
5.
6.
7. ?

Answer 15

7. The relative benefits to the parties of obtaining the information.

Question 16

1. The extent to which the request is _____________ ___________ to discover relevant information.

This is one of the _______ ________.

Answer 16

specifically tailored

most important

Question 17

2. The __________ of such information from other sources.

This is one of the ______ ________.

Answer 17

availability

most important

Question 18

3. The total cost of production, compared to the __________ ______ ____________.

Answer 18

amount in controversy

Question 19

4. The total cost of production, compared to the ___________ ___________ _______ ________ _________.

Answer 19

resources available to each party

Question 20

The _______________ of each party to _________ _________ and its incentive to do so.

Answer 20

relative ability

control costs

Question 21

6. The importance of the ______ at stake in the __________; and

Answer 21

issues

litigation

Question 22

7. The ______ ______ to the parties of obtaining the information.

This is the ________ _______.

Answer 22

relative benefits

least important

Question 23

The analysis requires some factual basis, so it may make sense to order a sample restoration of backup tapes before determining if __________________________.

Answer 23

costs should be shifted